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ADVOCATE-GENERAL FOR SCOTLAND
The Advocate-General was asked—
Devolution
16. Annabelle Ewing (Perth): What devolution issues have been raised with her since 24 June. [128458]
The Advocate-General for Scotland (Dr. Lynda Clark): Since 24 June, 93 devolution issues have been intimated to me. All but three related to criminal matters involving human rights claims, and the majority concerned delay in bringing criminal proceedings to trial. Other issues included challenges to the fixing of punishment part sentences for life prisoners under the Convention Rights (Compliance) (Scotland) Act 2001, confiscation of assets, and a challenge to a prison governor's refusal to provide a word processor to an inmate for the preparation of an appeal.
Annabelle Ewing : I imagine that one of the devolution issues winging its way towards the hon. and learned Lady is the growing outcry in Scotland about the shameful Westminster practice of locking up the
children of asylum seekers in Dungavel. Has the Advocate-General had recent contact with the Scottish Executive about the extent of their devolution powers, on the basis that health, education and social welfare issues are devolved? What is the statutory authority in Scotland for the exclusion of those children from mainstream education?
The Advocate-General: First, the Government introduced the European convention on human rights into our law. That provides a basis for domestic challenge.
On things winging their way towards me, I shall wait with bated breath until they land on my desk. If and when that happens, I shall consider any devolution issue in detail, as I always do. The constitutional settlement is clear: asylum is a reserved matter and education is generally devolved.
Mr. Alex Salmond (Banff and Buchan): Generally?
The Advocate-General: Generally. If I receive a relevant devolution matter of the sort that the hon. Lady suggested, I will scrutinise it carefully and bear her comments in mind.
Standards in Scotland's Schools etc. Act 2000
18. Mr. Michael Connarty (Falkirk, East): What human rights assessment she has made of the Standards in Scotland's Schools etc Act 2000. [128460]
The Advocate-General: I assess the legislative competence of each Bill introduced in the Scottish Parliament as part of the process of considering whether to exercise my power under section 33 of the Scotland Act 1998 to refer a Bill to the Judicial Committee of the Privy Council. That assessment includes a consideration of compliance with convention rights. When a Bill becomes law, my role on devolution issues continues.
Mr. Connarty : I am informed that sections 1 and 14 of the Standards in Scotland's Schools etc. Act 2000 state that any child with a need for special educational provision should be provided with it in mainstream schools. Gordon Jeyes, director of children's services and secretary of the Association of Directors of Education in Scotland, said that he believes that the UK Government are in breach of the Act because we do not implement it in relation to asylum seekers' children who are held in Dungavel.
The Advocate-General: Let me quote section 1 of the Act to my hon. Friend. It states:
- "It shall be the right of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by an education authority."
Devolution
19. Miss Anne McIntosh (Vale of York): What devolution issues she has considered since June 2003. [128461]
The Advocate-General: Since the end of June 2003 there have been 88 devolution issues intimated to me. As to their subject matter, I refer the hon. Lady to the answer I gave a few moments ago to the hon. Member for Perth (Annabelle Ewing).
Miss McIntosh: I am grateful to the hon. and learned Lady for that answer. Will she cast her mind back to the answer that she gave me before the summer recess on partnership law in relation to the reforms to Scottish land law being passed by the Scottish Parliament, and the devastating effect that they are having on Scottish landowners? What representations has she received from those landowners, and will she revise her advice in view of those representations?
The Advocate-General: I am casting my mind back drastically. I remember the hon. Lady's general question, but not the details. So far as I am aware, I have not received any representations since then, but I will certainly check with my office to see whether any have been made. If I think that I need to make changes to any of my views, I shall do so.
CONSTITUTIONAL AFFAIRS
The Parliamentary Under-Secretary of State was asked—
Judicial Appointments
21. Mr. Paul Goodman (Wycombe): What responses he has had to his consultation on the appointment of judges. [128464]
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): At this early stage of the consultation on the issue of creating a more independent judicial appointments process, a wide range of responses has already been received, including from members of the judiciary, magistrates, solicitors, barristers, academics and members of the public. Consultation closes on 7 November.
Mr. Goodman : Given that radical left-wing modernisation and the separation of powers are surely one and the same, will the Minister confirm that there will be no political veto over the appointment of judges—and if not, why not?
Mr. Leslie: The present arrangement has a Cabinet Minister intimately involved in the selection process of the judiciary. That system has produced a judiciary of very high standing and probity, but we feel that it is now an unsustainable anachronism and that we should have more open, transparently independent appointments processes. That is why we want an independent judicial
appointments commission, and a number of options have been posited in the consultation paper, which I commend to the hon. Gentleman.
David Taylor (North-West Leicestershire): The Minister talks about a more open and transparent system. Is it not the case that, last year, although the Lord Chancellor's Department received 3,600 applications, carried out 1,800 interviews and made more than 750 appointments, a clear audit trail for that process is lacking? Would not such an audit trail help to produce a system that would lead to a more diverse and representative Bench in a rather shorter time than the 10 to 15 years that some commentators believe it will take at the moment?
Mr. Leslie: It is, of course, desirable to have a more diverse judiciary reflecting the broad nature of the population, but we have to have appointment on merit, and this is the best way to proceed. One of the proposals in the consultation document is for a judicial ombudsman to oversee the work of the independent judicial appointments commission, but we believe that the current Commissioner for Judicial Appointments already does a good job of auditing and ensuring that our appointments process is of a high standard.
Mr. David Heath (Somerton and Frome): The noble and learned Lord Woolf, the Lord Chief Justice, said recently:
- "If the Executive can influence who is on the appointments commission and who the commission appoints that is interfering with the judiciary."—[Official Report, House of Lords, 8 September 2003; Vol. 652, c. 113.]
Mr. Leslie: There is an important issue involved in ensuring that advice on appointments from the Crown is given by Ministers, so that Ministers can be held accountable to Parliament. The hon. Gentleman asks an important question, however. The issue of who appoints the appointers is brought out in the consultation document. There is also a proposal in that document for an appointments panel chaired by the permanent secretary of the Department, with a senior judge and another senior non-political figure. We await the responses to see what the reaction to that proposal might be, but I hear what the hon. Gentleman has to say.
Mr. William Cash (Stone): The Minister will know that we affirm the absolute necessity of maintaining the independence of the judiciary as the safeguard of the freedom of the people, and of maintaining the freedom of the rule of law from political interference. How can the Government's proposed reforms achieve that? First, the ultimate appointment of judges will be made by the Secretary of State, who, on 14 July, said that he intended to act politically. Secondly, as has been said, the sifting committee will be chaired by his own permanent secretary. Thirdly, far from achieving a proper
separation of powers, the proposals remove the constitutional authority of the Lord Chancellor in the Cabinet, thus enhancing the power of the Secretary of State and thereby that of the Prime Minister—as usual.
Mr. Leslie: The hon. Gentleman should pay a little more attention to the detail in the consultation document. He is wrong, for instance, in saying that we propose that the permanent secretary chair the sifting panel during the selection process. That is simply not correct. We want an independent judicial appointments commission that will undertake the day-to-day process of selection separately. Under the current arrangement, as with that operated by the last Administration, a political Lord Chancellor sitting in the Cabinet—a Minister—undertakes all aspects of the process. We believe that the time when that was justifiable is past, and we want a more independent system. I hope that the Conservative party will add its support for that.
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